Citation: R v DJY (No 2) [2013] NSWDC 19
Court: District Court of New South Wales
Date: 22 February 2013
Judge: Judge S Norrish QC
Background
The applicant, a father who had been acquitted on all counts at trial, applied for a costs certificate under the Costs in Criminal Cases Act 1967 (NSW). He had been arraigned on seven counts of sexual offences allegedly committed against his daughter over a period spanning from 1982 to 1989, when she was between approximately 7 and 15 years of age. The alleged offences occurred across several locations in New South Wales, including Dapto, Bermagui, and Urunga.
The applicant was acquitted by direction on two counts and by jury verdict on the remaining five. This application followed a series of related trials: the applicant had previously been acquitted in respect of allegations made by other family members, and costs certificates had been issued in connection with at least one of those prior proceedings.
The Director of Public Prosecutions opposed the grant of the certificate. In support of its opposition, the DPP tendered additional witness statements under section 3A of the Act, arguing these were relevant to assessing whether it had been reasonable to institute the proceedings.
Legal Issues
- Whether, had the prosecution possessed all relevant facts before instituting proceedings, it would have been reasonable to bring the charges (the test under section 3(1)(a) of the Costs in Criminal Cases Act 1967)
- Whether any act or omission by the applicant contributed to the institution or continuation of the proceedings (section 3(1)(b) of the Act)
Decision
Judge Norrish applied the well-established test from Allerton v Director of Public Prosecutions (1991) 24 NSWLR 550, which requires the decision-maker to ask a hypothetical question: if the prosecution had possessed evidence of all relevant facts immediately before proceedings were instituted, would it have been reasonable to commence them? All relevant facts, including those that emerged during or after the trial and any additional evidence tendered under section 3A, must be brought into that analysis.
His Honour concluded that the complainant's allegations were substantially lacking in credibility across a number of dimensions. The physical evidence obtained through forensic examination of the applicant did not accord with the complainant's description of an identifying feature she claimed to have observed during one of the alleged assaults. Evidence at trial also substantially contradicted the complainant on central issues, including the opportunity to commit some of the offences, and on collateral matters going to the character of her relationship with the applicant and his household.
His Honour was careful to note that no single decisive fact determined the outcome of the application. Rather, the conclusion rested on a combination of matters, with some carrying more weight than others. Taken together, the totality of relevant facts meant the prosecution could not reasonably have been characterised as a mere "word against word" case in the Crown's favour.
On the second limb of the test, his Honour found that no act or omission of the applicant had contributed to, or might have contributed to, the institution or continuation of the proceedings. The applicant had not contested this aspect, and the DPP did not press it.
Orders Made
- A certificate was granted to the applicant pursuant to section 2 of the Costs in Criminal Cases Act 1967.
Key Takeaways
- The District Court confirmed that the costs certificate test under the Costs in Criminal Cases Act 1967 is hypothetical and backward-looking: the court must consider what the prosecution knew, or would have known, had all relevant facts been available before proceedings commenced.
- Additional evidence tendered under section 3A of the Act forms part of the "all relevant facts" analysis, even if that evidence did not feature at trial.
- A certificate may be granted even where no single decisive fact undermines the prosecution case; a cumulative assessment of multiple credibility and evidentiary issues can suffice.
- Where physical evidence obtained during the investigation is inconsistent with the complainant's own account of identifying features observed during an alleged assault, that inconsistency carries significant weight in the costs certificate analysis.
- Acquittals in related proceedings involving the same accused are part of the broader context but do not, of themselves, determine the outcome of a costs certificate application in a separate trial.
Legislation and Cases Referenced
Legislation
- Costs in Criminal Cases Act 1967 (NSW), ss 2, 3, 3A
Cases
- Allerton v Director of Public Prosecutions (1991) 24 NSWLR 550
- Mordaunt v DPP [2007] NSWCA 121
- R v Johnston [2000] NSWCCA 197
- R v Manley (2000) 49 NSWLR 203